Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: David Trautner v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 73-459-W.
Michael S. Alushin, Special Assistant Attorney General, with him Maxine Woelfling, Special Assistant Attorney General, for appellant.
Richard H. Roesgen, for appellee.
Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Kramer.
[ 19 Pa. Commw. Page 117]
This is an appeal by the Department of Environmental Resources (DER) from an order of the Environmental Hearing Board (Board), dated August 1, 1974, in which the Board sustained an appeal by David A. Trautner (Trautner).*fn1 Trautner had appealed from DER's denial
[ 19 Pa. Commw. Page 118]
of a permit for an individual on-lot sewage treatment system.
Trautner owns a parcel of land in Hepburn Township (Township), a rural municipality located near Williamsport. Recently the Township has experienced growth and development, which has resulted in construction activity in previously unpopulated areas of the municipality.
Like all Pennsylvania municipalities, the Township is required to file with DER an acceptable comprehensive plan for the disposal of sewage, pursuant to the Sewage Facilities Act (Act), Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. § 750.1 et seq. (Supp. 1974-1975). Sections 3 and 5 of the Act, 35 P.S. §§ 750.3 and 750.5 (Supp. 1974-1975) provide, inter alia, for the promulgation of regulations governing review and acceptance of official plans, and for periodic revisions (by the municipality) of such plans. From the record it appears that there is no question that the Township has filed an acceptable initial comprehensive plan, and the only real controversy in the instant case involves the Township's attempt to amend its plan to accommodate the construction of a home in a hitherto undeveloped (and consequently unplanned) area.
The comprehensive plan filed by the Township did not envisage the construction of a home on Trautner's lot, and, in support of his application for a permit, the Township filed with DER a brief amendment to its plan which read, in its substantive portion, as follows:
"Now, therefore, be and it is hereby resolved, that the Township of Hepburn does hereby revise said Township's official plan in order to provide for the individual residential sewage treatment facility for the David A. Trautner property."
DER rejected Trautner's permit on alternative grounds, specifying that (1) the above-quoted resolution was an inadequate revision under DER regulation 71.16(b), 25 Pa. Code § ...